407 A.2d 555 (D.C. 1979), 13503, Morrison v. MacNamara

Docket Nº:13503, 13504.
Citation:407 A.2d 555
Party Name:Richard E. MORRISON, Appellant, v. Tom MacNAMARA et al., Appellees. Tom MacNAMARA et al., Appellants, v. Richard E. MORRISON, Appellee.
Case Date:October 02, 1979
Court:Court of Appeals of Columbia District
 
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Page 555

407 A.2d 555 (D.C. 1979)

Richard E. MORRISON, Appellant,

v.

Tom MacNAMARA et al., Appellees.

Tom MacNAMARA et al., Appellants,

v.

Richard E. MORRISON, Appellee.

Nos. 13503, 13504.

Court of Appeals of Columbia District

October 2, 1979

Argued Jan. 25, 1979.

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Janis L. M. McDonald, Alexandria, Va., with whom John D. Grad, Alexandria, Va., was on the brief for appellant in No. 13503 and appellee in No. 13504.

Patrick J. Attridge, Rockville, Md., for appellees in No. 13503 and appellants in No. 13504.

Before NEWMAN, Chief Judge, MACK, Associate Judge, and YEAGLEY, Associate Judge, Retired. [*]

NEWMAN, Chief Judge:

Appellant Morrison, a plaintiff in a medical malpractice action in the trial court, challenges a judgment in favor of appellees, a nationally certified medical laboratory and a medical technician. He contends that the trial court erred in denying his requested jury instruction that the standard of care to which appellees should be held is a national standard as opposed to a local one. He further contends that the trial court erred in permitting the jury to consider the issue of assumption of the risk. We agree with appellant on both contentions and reverse. [1]

In Part I, we set forth the relevant facts and trial proceedings. In Part II, we discuss the standard of care issue and explain why the verdict in favor of appellees must be set aside. In Part III, we consider the issue of assumption of risk and set forth reasons why the trial court's submission of this issue to the jury also requires reversal.

I

FACTS AND TRIAL PROCEEDINGS

The facts at trial were basically undisputed. They indicated that upon orders of his personal physician, appellant went to appellee Oscar B. Hunter Memorial Laboratories, Inc., a nationally certified clinical medical laboratory located in the District of Columbia, for the performance of a urethral smear test. [2] The test was administered by appellee Tom MacNamara, a clinical technician, who at that time had been employed by appellee Hunter Laboratories for approximately seven months. According to the technician, he administered the test by inserting a cotton swab about a quarter-inch into the penis with appellant in a standing position. Following the completion of the first test, appellant complained of feeling faint. The technician instructed appellant to sit down and rest, and to place his head between his legs. The technician did not attempt to examine appellant or seek medical assistance so that the source and extent of appellant's complaints could be ascertained.

Approximately two to three minutes later, the technician asked appellant "if it was okay to go ahead" with a second test and appellant replied "yes." The technician then proceeded to perform the test a second time, again with appellant in a standing position. While the test was being administered a second time, appellant fainted, striking his head on a metal blood pressure stand and on the tile covered floor. Subsequently, he was taken to George Washington University Hospital where he was admitted as a neurosurgery patient. As a result of this incident, appellant sustained a number of injuries including a permanent loss of his sense of smell and a partial loss of his sense of taste. Appellant brought an action against appellees charging them with professional malpractice in the manner in which they conducted the test and for proceeding

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with the test despite the fact that appellant had complained of feeling faint.

At trial the principal issue in dispute concerned the appropriate standard of care to be applied to appellees. Appellant maintained that since the laboratory was nationally certified and held itself out to the public as such, appellees should be held to a national standard of care. In this connection, appellant presented as an expert witness, Dr. George Shargel, a board certified urologist and a member of the American College of Surgeons, who practiced in the state of Michigan. Dr. Shargel stated that although appearing simple, the urethral smear test involved a highly invasive procedure causing severe pain, particularly if there is disease or inflammation present. He testified that the insertion of a swab into the male organ produces a vasal vagal reflex in a patient which causes the blood to rush from the brain to the area being traumatized, thereby causing the patient to feel faint. For this reason, Dr. Shargel explained, the nationally accepted medical standard of care requires the test to be administered with the patient in a prone or sitting position. Moreover, Dr. Shargel testified that with respect to obtaining a good specimen, there was no qualitative difference between administering the test with the patient in a standing or prone position.

Dr. Shargel also testified that to proceed with a second urethral smear test with the patient in a standing position shortly after a patient complained of feeling faint is contrary to nationally accepted standards of care. He stated that it would be improper to rely solely on a patient's word that he feels better minutes after complaining of faintness. The proper procedure according to Dr. Shargel, would be to use more objective criteria such as pulse or blood pressure, to evaluate the patient medically.

Appellees presented several expert witnesses who testified on the applicable professional standard of care all of whom were from the Washington, D.C. metropolitan area. Dr. Oscar B. Hunter, the principle owner of the appellee laboratory, testified that the laboratory was nationally certified by the College of American Pathologists and that the laboratory holds itself out to the public as such. According to Dr. Hunter, it is not a deviation from accepted medical standards in the Washington, D.C. metropolitan area or anywhere in the country for the urethral smear test to be administered with a male patient in a standing position. He also stated that the decision to proceed with a second test after the plaintiff had complained of feeling faint was simply a matter of judgment.

Dr. Richard E. Palmer, a pathologist with a clinical laboratory in Alexandria, Virginia, also testified as an expert witness for the appellees. Dr. Palmer stated that he was not aware of any national standards for conducting the urethral smear test, but that in the Washington metropolitan area the accepted procedure is that the test is administered with a male patient in a standing position. Moreover, according to Dr. Palmer, it would be a proper exercise of judgment to repeat the test after a patient complained of feeling faint, if the patient subsequently indicated that he felt better. However, Dr. Palmer stated that he would medically evaluate the patient to ascertain whether the patient was capable of undergoing a second test.

Appellees' final expert witness was Dr. William Dolan, a pathologist and director of the pathology laboratory at Arlington Hospital in Virginia. Dr. Dolan stated that he was not aware of any national standards for conducting the urethral smear test, but that for the past thirty years he has always administered the test with the patient in a standing position. Dr. Dolan stated that if confronted with a patient who complained of feeling faint, he would not only inquire how the patient was feeling, but would also medically evaluate the patient to determine if the patient was capable of proceeding with a second test.

At the close of all the evidence, appellant submitted several jury instructions which were based on the national standard of care. Appellant maintained that in view of the national certification of the laboratory, the laboratory was under a duty to adhere

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to nationally accepted standards for administering the urethral smear test, and that the jury should be so instructed. Appellees argued that the laboratory owed only the duty to adhere to that standard of medical care recognized in the Washington, D.C. metropolitan area. The trial court agreed with appellees and instructed the jury as follows:

You are instructed that a medical laboratory and its personnel are required to exercise such care and skill as is exercised by other medical laboratories and their employees in good standing In the same community. That the degree of care and skill required is not the highest degree of care and skill known to the profession, but that which is exercised by ordinary and reasonably competent laboratory personnel in the treatment of patients under the same or similar circumstances. . . . (Emphasis added.)

In addition, at the request of appellees and over the objection of appellant, the trial court submitted to the jury the issue of assumption of the risk based on appellant's "consent" to the administering of the second urethral smear test. The jury returned a verdict in favor of appellees on all issues.

II

THE STANDARD of CARE IN MEDICAL MALPRACTICE

A. General Principles

The elements which govern ordinary negligence actions are also applicable in actions for professional negligence. The plaintiff bears the burden of presenting evidence "which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of." Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C. 322, 324, 394 F.2d 947, 949 (1968), Quoted in Haven v. Randolph, 161 U.S.App.D.C. 150, 151, 494 F.2d 1069, 1070 (1974). In negligence actions the standard of care by which the defendant's conduct is measured is often stated as "that degree of care which a reasonably prudent person would have exercised under...

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